You’ve Been Served

SFR court case alleges governor violated IPRA, state constitution.

The Santa Fe Reporter filed a lawsuit against Republican Gov. Susana Martinez this week in the First Judicial District Court.

The lawsuit alleges Martinez “routinely” violated the state’s public records law by withholding public records requested by SFR. It also asserts that the governor violated the “freedom of the press” provision in the New Mexico Constitution “by unlawfully discriminating and retaliating” against SFR.

The governor’s office refused to respond to the paper’s inquiries for seven months on a long list of stories. Silence from the governor’s office amounts to prior restraint and censorship, the complaint alleges.

The lawsuit asks for injunctive relief requiring Martinez and her office to implement policies and procedures that would ensure searches for public records requested under the law are “prompt and thorough”; that the governor’s office “immediately cease and desist from discriminating and retaliating against” SFR. It also asks for damages, and reasonable attorneys fees and costs.

The complaint cites seven violations of the state’s Inspection of Public Records Act by the governor’s office between December 2011 and June 2013. They range from Martinez’ refusal to properly provide her daily calendar to SFR to her refusal to disclose information on pardon requests.

The state’s public records law allows citizens to inspect the emails of public officials. In three instances, the governor’s office claimed it didn’t have emails SFR requested under IPRA, even though SFR had obtained the emails from other sources. The complaint says that’s evidence that the governor’s office does not have an adequate system for searching relevant public documents, especially those exchanged via private email accounts.

Daniel Yohalem, the attorney who filed the complaint on behalf of SFR, says the administration’s noncompliance with the newspaper’s public records requests violates every New Mexican’s right to public documents.

“This is about protection for the people of New Mexico—protection for their right to information,” Yohalem says.

The use of private emails for public business isn’t limited to the governor’s office. Members of the Santa Fe school board and city council also use private email, and whether those documents are properly retained under the law is important for newsgathering and for the public, SFR Editor Julie Ann Grimm says.

The lawsuit also alleges Martinez “damaged the public’s access to information by unlawfully discriminating and retaliating against” SFR in violation of the state constitution. Despite repeated telephone calls and email requests, the governor’s office refused to respond to SFR to provide comments for seven months following SFR’s publication in December of an article about the private email issue [cover, Dec. 18, 2012: “The Year In Closed Government” ].

“In contrast to the Governor’s treatment of Plaintiff,” states the complaint, “Defendant’s spokesman regularly responds to inquires from other news organizations.”

The lawsuit alleges Martinez “engaged and continues to engage in a campaign of retaliation and impermissible viewpoint discrimination against the SF Reporter.”

That Martinez’ office, through its spokesman Enrique Knell, hasn’t responded to SFR’s inquiries constitutes “unlawful retaliation” against SFR, the complaint alleges, “for the publication of articles that did not cast Governor Martinez and her administration in a favorable light, a prior restraint of [SFR’s] freedom to publish the news, censorship, and viewpoint discrimination in violation of the Free Press Provision of the New Mexico Constitution.”

The complaint documents a June 6 phone call from an SFR staffer to Martinez’ cell phone.

SFR’s complaint marks the second public records-related lawsuit in two weeks involving New Mexico’s state government. Last week, New Mexico In Depth sued the state for failing to produce an audit that alleged Medicaid fraud by 15 of the state’s behavioral health providers.

But the claim that Gov. Martinez violated the state’s Free Press provision is unprecedented in a New Mexico court, according to Yohalem.

Newspapers, however, have succeeded with similar prior restraint claims in violation of the First Amendment in other courts. In 1988, for instance, a federal district court ruled in favor of the Times-Picayune Publishing Corporation when a Louisiana sheriff withheld newsworthy information from and excluded certain reporters from press conferences.

Another case in 1979 found that a Texas district attorney had violated the First Amendment by forcing reporters from an unfavored newspaper to make advanced appointments that reporters from other newspapers didn’t have to make.

By not following the state’s public records law and avoiding SFR’s emails and phone calls, the governor’s office is withholding information the newspaper needs to cover certain subjects, Yohalem says.

“They are trying to keep [SFR] from telling stories about their administration,” he says.